Substantial Risk (David Brunelle Legal Thriller Series Book 5)

by Stephen Penner

  “Because my client is innocent,” Jacobsen explained. “And what greater victory for a prosecutor than to convince a jury to convict an innocent man?”

  A lopsided smile creased the side of Brunelle’s face. Ordinarily, he would have been offended by the suggestion, but the relief that Jacobsen was just being an asshole, rather than knowing about his recent escapades, tempered the irritation.

  “Sorry, Ron,” he replied as he stepped over to the prosecutor’s table. “Prosecutors seek justice, not just a conviction. I have no interest in convicting an innocent man. But you’re client is anything but innocent.”

  At that moment, Yamata broke the threshold of the courtroom. All eyes turned to the attractive young attorney as she pulled open the door with a bang and hurried to Brunelle’s side, her arms full of files and books.

  “Sorry I’m late,” she panted as she dropped the books onto the prosecutor’s table.

  Brunelle looked up at the clock. It was 8:57. Three minutes until the hearing was scheduled to begin.

  “You’re not late,” Brunelle observed. “In fact, you’re right on time.”

  But Yamata shook her head as she straightened out her books and files and notepad into perfect order before her. “No. Early is on time. On time is late. And late is unacceptable.”

  Brunelle looked at her for a moment and another lopsided smile graced his features. He knew she was serious, and there was no point in arguing with her. So instead he asked, “Ready?”

  Her materials in place and the clock about the strike 9:00, she smoothed her hair back and smiled. “Ready. Get ready to be dazzled by the force and eloquence of my oral advocacy.”

  “All rise!” the bailiff announced. “The King County Superior Court is now in session. The Honorable Susan Quinn presiding.” And Judge Quinn emerged from her chambers to take the bench.

  Brunelle had been pleased when they drew Quinn for the trial. He knew all the judges and all the judges knew him, but not all the judges knew Yamata. Quinn had been the judge on the trial Yamata and Brunelle had done together—Yamata’s first murder trial. Brunelle had found that it was impossible to be in the same room with Yamata and not be impressed by her. After how Yamata had handled herself in that last trial, Brunelle figured Quinn felt the same way.

  Which was good, since Yamata was going to be arguing the motions to dismiss for prosecutorial misconduct. He could hardly protest his own innocence credibly. He needed his own lawyer.

  “Are the parties ready to proceed with the motions hearing?” Judge Quinn asked from her perch above the attorneys.

  Jacobsen stood to address the court. “Mr. Atkins is ready.” Brunelle noted Jacobsen’s use of his client’s name rather than ‘the defendant.’ Smart. Humanize him.

  Yamata stood up next. “The State is ready.”

  Brunelle frowned slightly. No chance to humanize him. Prosecutors didn’t have clients—just ‘the State’ or ‘the People’ or ‘justice’, whatever that meant.

  Quinn looked over to Jacobsen. “These are your motions, counsel. I’ll hear from you first.”

  Jacobsen nodded and Yamata sat down. She patted Brunelle’s arm. Just in case he didn’t already feel like he was on trial. He glanced over to Atkins, perhaps expecting a knowing look from a kindred spirit, but Atkins was paying attention to the proceedings. Brunelle figured he should probably do that too. He looked up at Jacobsen and steeled himself for the onslaught of personal attacks. He suddenly recalled that lawyers can’t be sued for slander for things they say in court.

  “May it please the court,” Jacobsen began formally. “Mr. Atkins has brought forth several motions regarding misconduct by the government, and specifically by Mr. Brunelle. This misconduct has prejudiced my client, has deprived him of due process, and has made it impossible for him to receive a fair trial. At a minimum, the court should remove Mr. Brunelle from the case, but in truth the entire prosecution has been tainted by his malfeasance and the only just remedy is dismissal.”

  Quinn raised her hand slightly. “Let me interrupt you, counsel. I’ve read your briefing. As I understand it, you’re alleging that Mr. Brunelle violated the Rules of Professional Conduct by having contact with a represented person, correct?”

  “I’m not alleging anything, Your Honor,” Jacobsen replied. “It’s uncontroverted that Mr. Brunelle spoke directly with my client. He concedes as much.”

  Quinn looked over to Brunelle, who shrugged and nodded in reply.

  “The State concedes the contact,” Yamata stood to say, “but we disagree that it violated the RPCs or in any way prejudiced Mr. Atkins.”

  Judge Quinn clicked her tongue. “I’m sure it prejudiced Mr. Atkins to some degree. Everything prejudices every party to some degree. But I think there are two separate issues here. One is whether Mr. Brunelle may have violated his professional ethics. The other, and frankly the one I’m more concerned about, is whether Mr. Brunelle somehow violated Mr. Atkins’ constitutional rights.”

  She tapped a finger against her lips and Jacobsen was experienced enough to wait for the question that was obviously coming.

  “Mr. Jacobsen, do you think Mr. Brunelle’s questioning violated your client’s right to remain silent?”

  Oh, fuck, Brunelle thought. He hadn’t thought of it that way.

  Obviously neither had Jacobsen. But he liked the idea. “Uh, well, yes, that’s an excellent question, Your Honor. I would have to say yes. Mr. Brunelle is a state actor and he interrogated my client without advising him of his right to remain silent. That would appear to be a violation of Miranda rights.”

  Brunelle knew there was a flaw to that argument, but it didn’t jump immediately to mind. He looked to Yamata, whose brow was likewise creased in incredulity, but Quinn spoke before either of them could quiet tease it out.

  “I agree that Mr. Brunelle was a state actor,” she said. “He’s the prosecutor. But Miranda only applies if the interrogation is custodial. Was your client in custody at the time of the contact?”

  Brunelle was suddenly very glad that Atkins had made bail.

  “Uh no, Your Honor,” Jacobsen admitted with a bit of a squirm. “He had posted bail. But there was the lingering chilling effect of having been unjustly incarcerated.”

  Brunelle almost managed not to roll his eyes at that. The bondage master chilled by physical restraint. Right.

  “And there can’t have been a violation of his right to counsel,” Quinn interrupted, “because Mr. Atkins’ previous attorney was there representing him, isn’t that correct?”

  “Well, his previous attorney was physically present,” Jacobsen sneered, and glanced back at Atkins, “but I would hardly say that he represented my client’s best interests.”

  Quinn allowed herself a smile and a nod. She knew Lannigan too.

  “Are you suggesting then,” she asked Jacobsen, “that although your client was no longer physically in custody, the prior detention, coupled with the threat of reincarceration upon conviction, rendered the conversation quasi-custodial? And further that Mr. Lannigan, by acting in concert with Mr. Brunelle, took on the role of a de facto government actor, thereby converting the conversation into a type of custodial interrogation for which a formal advisement of Miranda rights was required?”

  Jacobsen paused. Then smiled. “Yes. That.”

  Quinn nodded and pursed her lips. She looked over to the prosecution table. “Ms. Yamata, does the State intend to introduce at trial anything Mr. Atkins said during that interview?”

  Yamata considered the question and looked to Brunelle. He could barely remember the conversation. He didn’t remember any bombshells. Whatever Atkins said then, he likely already said the night of the homicide, after Chen had properly advised him of his rights. Brunelle shook his head.

  “No, Your Honor,” Yamata related.

  “Good,” the judge said. “Then the issue is moot. The remedy for a constitutional violation is the suppression of the evidence obtained from that violation. The fruit of the p
oisonous tree. The State has said they do not intend to introduce any statements from that conversation, therefore I don’t need to decide whether there was any violation.” Then she unfurled a thin smile at Jacobsen. “Although I will say that I think the argument quite attenuated.”

  Well, that’s a relief, Brunelle thought. But it wasn’t quite that simple.

  “I think Your Honor might be missing our point,” Jacobsen interjected.

  Brunelle winced. Don’t tell a judge she missed your point.

  Quinn’s smile, however thin, faded completely. “Oh?” she asked, in as icy a tone as that single syllable would allow.

  “Y-Yes,” Jacobsen stammered. He understood the tone. “We aren’t seeking mere suppression of some pieces of evidence. Mr. Brunelle violated the Rules of Professional Conduct and thus—”

  “Isn’t that an issue for the Bar Association?” Quinn interrupted. “Not the trial judge in the criminal case?”

  “Well, I think it impacts the criminal case,” Jacobsen persisted, “but yes, the Bar Association has been notified.”

  Quinn pushed herself back in her chair. “You filed a bar complaint?” she demanded.

  Thank you, Brunelle thought. At least someone else is indignant about it.

  “Ah, my client did,” Jacobson replied weakly. “Not I.”

  Quinn cocked her head at him. It showed her disbelief without saying anything that the court reporter could actually take down for future review.

  “So there’s a pending bar complaint against Mr. Brunelle for exactly the conduct you’re alleging here?”

  Jacobson thought for a moment, then nodded. “Yes, Your Honor.”

  Quinn looked directly at Brunelle. “Were you aware of this, Mr. Brunelle?”

  Brunelle nodded. “Acutely.”

  The judge looked back to Jacobsen. “And what happens to Mr. Brunelle if I make a finding that the alleged misconduct occurred?”

  Jacobsen paused and offered his own thin smile. “I suppose he will face discipline.”

  “Suspension?” Quinn pressed.

  Jacobsen shrugged. “Possibly.”

  “In which case, he’ll no longer be the prosecutor on this case,” Quinn observed.

  Or any case, Brunelle knew.

  “I suppose not,” Jacobsen agreed.

  Quinn looked again to Brunelle. “Have they assigned an investigator yet?”

  Brunelle finally stood to address the court. “Yes, Your Honor. Yvonne Taylor. I had the pleasure of meeting her recently.”

  “I bet,” Quinn muttered. Jacobsen drew in a breath to say something but she stopped him with a wave of her hand. Then she steepled her fingers together and pressed them against her lips in thought.

  After several moments, she announced, “I have heard nothing that requires suppression of evidence or otherwise directly impacts this particular criminal case. To whatever extent Mr. Brunelle may be facing professional discipline, that is a matter best handled by the Bar Association. I decline to interfere or prejudge that investigation. Accordingly, I am reserving ruling on the motion to dismiss for misconduct until the Bar Association completes its investigation.”

  The lawyers all took a moment to absorb what the judge had said.

  “The Bar is unlikely to complete its investigation until after the trial in this matter,” Jacobsen protested.

  Quinn nodded. “I agree.”

  “So what happens if the Bar finds misconduct after the trial?” Jacobsen asked.

  “Then I will reconsider the motion to dismiss. If Mr. Atkins is acquitted,” Quinn explained, “the motion will be moot. And if he’s convicted, I will consider vacating that conviction if the Bar finds misconduct on the part of Mr. Brunelle. Just because the jury says ‘guilty’ doesn’t mean I have to impose a conviction.”

  “So we try the entire case knowing you might throw out the conviction anyway?” Brunelle half-complained.

  Quinn looked down at him like a loving, but irritated mother. “Would you rather have me throw it out now?”

  I’d rather have you find I didn’t commit misconduct, Brunelle thought, and forward that finding on to Yvonne Taylor. But he knew not to say that. In fact, he knew not to say anything more at all. “No, Your Honor. Thank you, Your Honor.”

  Chapter 20

  “I’m not exactly dazzled,” Brunelle commented as they left the courtroom. “Your arguments seemed a bit lacking.”

  Yamata shot daggers at him from the corner of narrowed eyes. “I never got to my arguments. Quinn barely even talked to me.”

  “She barely talked to anyone,” Brunelle expanded Yamata’s comment. “But at least she didn’t dismiss the case.”

  “Not yet,” Yamata complained. They’d reached the elevators. She banged the ‘up’ button way too hard, way too many times. “But now we’ve got your stupid bar complaint hanging over our heads the entire trial. Why the fuck should we try the damn thing if it’s just going to be dismissed afterwards because of your unethical ass?”

  Brunelle wasn’t unaccustomed to profanity, and Yamata wasn’t one to avoid it, but she usually kept her emotions in check. She was pissed.

  “Yeah, sorry about that,” he offered. “But I really don’t think we need to worry too much. It’s a bullshit complaint. They’ll dismiss it once they really look into it.”

  “Sure,” Yamata replied as the elevator doors opened. “If it were so cut and dry, why haven’t they dismissed it already?”

  Brunelle frowned. That was a good question. Yvonne Taylor didn’t seem to think it was so cut and dry. In fact, she didn’t seem to like him. Peter Sylvan liked him. Too bad he wasn’t a real bar investigator. Then again, what he did seemed a lot more interesting…

  “Are you even listening to me?” Yamata spat. “Jesus, Dave. We have a trial in less than a month on a national-news sex murder and the entire time we try it, there’s a risk it gets dumped anyway. Can’t you think of anything to say?”

  Brunelle thought for a moment. “It’s a manslaughter case, not murder.”

  “Fuck!” Yamata slammed the file into Brunelle’s chest. “You need to figure this out. I am not putting all that effort into a trial if it’s just gonna get pulled out from underneath me at the end. I have enough regular trials I can lose just fine without you and your ethical problems.”

  Brunelle took the file and also the abuse. He knew she wouldn’t really ask to get off the case. She was ambitious. Ambitious prosecutors don’t ask to get taken off of high-profile cases. Still, she had a point.

  “I’ll call the bar,” he said calmly. “Maybe they can expedite the process. I’ll explain what the judge just ruled. I really didn’t do anything wrong. Looking back, I wish I hadn’t done it. But I followed the rules. Really.”

  Yamata’s angry visage softened. The elevator doors opened again and they stepped off into the hallway. She pulled the file back from Brunelle. “Okay. I bet they will. Get a hold of them and get this settled. I want to convict this bastard.”

  Brunelle nodded. He did too.

  Yamata finally cracked a smile. Slight, but definitely extant. “You’re unusually quiet, Dave. Especially with me yelling at you and all. Nothing else on your mind?”

  You’re fucking gorgeous when you’re angry. But he knew better than to say that.

  He returned the controlled smile. “Let’s get this guy.”

  Chapter 21

  “You want to be interviewed now?” There was no disguising the surprise in Yvonne Taylor’s voice. But over the phone, Brunelle couldn’t tell if her jaw had dropped in astonishment, or she was licking her chops in anticipation. “Most attorneys try to draw out our investigation as long as possible.”

  Brunelle nodded. “Yeah, defense attorneys do that too, hoping the witnesses will lose interest or move away. Ordinarily, I’d be happy to put this off as long as possible—after I retire, say—but something’s come up.”

  “Oh?”

  Brunelle could tell by the tone of that one syllable that her expression
, whatever it had been, had changed to one of curiosity. She was an investigator, after all. He had her.

  “Yeah,” Brunelle started. “It’s like this…”

  So Brunelle explained the judge’s ruling, or rather, her lack of ruling. He explained the impact a delayed bar investigation could have on a hard-fought conviction. And he explained that he felt confident he would be exonerated so couldn’t they just get it done with?

  When he finished, there was a long pause. He decided not to fill it. After a few more moments, Taylor asked, “Are you available to come to the Bar offices next Thursday at nine a.m.?”

  Brunelle quickly pulled his calendar up on his computer screen. He had two pre-trial conferences and a motion to continue trial date all scheduled that morning.

  “I’m wide open,” he said. Yamata would cover those hearings for him too. Ambitious young lawyers don’t say no to covering court dates for senior attorneys.

  “See you then, Mr. Brunelle,” Taylor said.

  “Looking forward to it,” Brunelle lied. They both hung up and Brunelle wondered again whether Taylor was smiling like the cat who was about to swallow the canary.

  * * *

  Yamata was relieved Brunelle had scheduled his interrogation so quickly. She was doubly so when they got served with Jacobsen’s scheduling order. He hadn’t been kidding about ‘round one.’ After losing that round—or not winning it anyway—Jacobsen pushed on to the more troubling motions: attacking the case itself. Brunelle’s meeting with Yvonne Taylor was set for a Thursday. The following Monday morning he and Yamata would be back in front of Quinn, trying to explain why she shouldn’t just throw the case out. It was an accident, Jacobsen would argue, and even if everything the State alleged were true, it still wouldn’t be a crime.

  Ordinarily judges denied those types of motions—known by the lawyers as Knapstad motions, after the Washington case where the trial court actually did throw out a case. But this wasn’t an ordinary case. Both sides agreed that it was an accident. That’s what manslaughter was, and accident. But Brunelle would argue to the jury that it was a preventable accident, Atkins should have known better, and therefore it was a crime.